MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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How to Gather Proof for Your Medical Malpractice Case

If you are taking your medical malpractice case to court, you need evidence to show the jury that the doctor committed malpractice. Just a claim alone without any evidence may not be enough to get your case past filing a complaint. Evidence can be very important in a medical malpractice case to show there was a breach of the duty of care and to show the extent of damage caused. 

Evidence and proof in a medical malpractice case can come in several forms, including testimony, medical records, and a doctor’s evaluation. It is important to understand the types of evidence used in a medical mistake lawsuit and to make sure you keep and preserve any important evidence so it can be used later in court. 

If you have questions about the kinds of evidence you need in a medical malpractice case, contact an experienced medical malpractice lawyer for legal advice. Your attorney can help you understand your legal rights and help you gather the important evidence you may need.  

Evidence in a Medical Malpractice Case

Evidence is the information, documentation, or objects that are admitted into court for judges and juries to consider when trying a case. Evidence that can be used to prove a medical negligence claim may include: 

  • Evidence of physical injury
  • Medical records
  • Hospital records
  • Healthcare policies and regulations
  • Evidence that speaks for itself (res ipsa loquitur)
  • Video or audio recordings
  • Expert witness reports
  • Incorrect prescriptions
  • Diagnostic test results
  • Witness statements

Different evidence can be used in different ways. In a medical malpractice case, the injury victim generally has to prove the following elements

  1. The doctor owed a duty of care to the patient; 
  2. The doctor breached that duty of care by deviating from medical standards; 
  3. The breach was the cause of injury to the patient; and
  4. The patient suffered harm as a result. 

The injury victim has the burden of proof in a civil negligence lawsuit and has to prove each element to the jury based on a preponderance of the evidence. For any issues in dispute, evidence can be used to show the jury that there was a duty, breach, causation, and harm

For example, if the doctor claimed they never saw the patient, medical records signed by the doctor after a patient review could be used to show there was a doctor-patient relationship and the doctor owed the patient a duty of care. 

If the negligent doctor claimed the patient’s injuries were not that bad, an independent medical examination (IME), records of medical bills, and evidence of not being able to return to work could be used to show the extent of the harm. Evidence of the harm is also used to help the jury calculate the amount of damages to award the injury victim. 

Evidence You Can Gather Today

Some of the evidence is available to you as soon as you find out about a possible medical error. Other evidence continues to compile, like continuing medical bills to correct a medical error. Some proof in a medical malpractice case is unclear and may have to be estimated based on statistics and assumptions, including the future costs of medical care for a child with a birth injury. 

The first thing you can do is gather any proof of the injury that you have available to you at the time. This may include: 

  • Calendars
  • Diary entries 
  • Medical bills
  • Pay stubs
  • Receipts for medication and medical equipment

You can help gather evidence by making notes, taking pictures, and gathering information. Even if you think you will remember everything, writing down the information can be more helpful when it is fresh in your memory. For any physical injuries, you may want to take photos or videos. A diary can also help provide information along the way, including pain reports, difficulties in getting around, and complications in daily life. 

Proof Available From Other People

There may be proof for your medical malpractice case that you do not have or is under the control of someone else. This may include people with knowledge related to your case, evidence that is important in your injury claim, or records that involve the negligent care you received. Proof available from other people or entities may include: 

  • Witness statements
  • Diagnostic test results
  • Video evidence
  • Hospital records
  • Medical records
  • Prescription records
  • Employment records
  • Healthcare policies and regulations

How To Get a Copy of Your Medical Records

The most important proof in a medical malpractice claim is often the medical records. Medical records in a malpractice lawsuit help provide a picture of what happened before, during, and after the medical error. This includes showing the signs and symptoms of the patient, diagnosis, treatment prescribed, monitoring, and discharge from care. 

Even when the records do not indicate exactly what went wrong, they can provide a lot of important information that is useful for experts and juries. For example, showing the medical records that indicate the times a nurse stopped by to assess the patient could be used as evidence to show the patient was left alone or not monitored for an excessive period of time that goes against medical standards and hospital policies. 

Medical records in a malpractice case can be extensive, involving thousands of pages of notes, documents, records, images, and other evidence. Another issue with gathering medical records is that they may be stored all over the place. You may have to go to multiple offices to put in a request for a copy of your records. Many medical service providers now use remote storage to maintain medical records, making it even more complicated to get a copy of your records. 

Problems Getting Your Medical Records

Your medical records are your property. But when you go into your doctor’s office to get a copy of your records, it can turn into a major hassle. A lot of patients experience major problems when trying to get their medical records

Medical records are covered by the Health Insurance Portability and Accountability Act (HIPAA). HIPAA laws are supposed to protect patient privacy and give individuals access to their personal health information. Technically, after a patient makes a formal request in writing, the healthcare provider has up to 30 days to provide a copy of the individual’s health information. However, in practice, this can be much more complicated

Calling up your doctor’s office may end up with the administrator saying they don’t keep the records on-site and the patient has to get them from a 3rd party. One study found that there were a lot of inconsistencies between what an administrator tells patients and the hospital’s own policies and patient authorization forms.  

A doctor reported about the difficulties of getting your records in an article for National Public Radio (NPR), titled “It’s Your Right To See Your Medical Records. It Shouldn’t Be This Hard To Do.” 

Cost of Gathering and Copying Medical Records

Under the 2009 law Health Information Technology for Economic and Clinical Health Act (HITECH), healthcare providers were allowed a maximum fee for a copy of electronic medical records, including a flat fee option not to exceed $6.50. Records keepers were also restricted from charging additional fees for retrieving records, handling records, or processing the request for access to records. 

Under federal guidelines, medical providers are limited in how much they can charge for access to medical records. However, in reality, many hospitals and medical records companies often charge more for access. Record-keepers and health care providers may even quote ridiculous amounts for getting a copy as a way to persuade the patient to give up their request. 

According to the Centers for Disease Control & Prevention (CDC), over 86% of physicians have their patient records stored in an electronic medical record (EMR) system. Getting a copy of records is supposed to be available in the format requested by the patient, either in hardcopy paper form or electronically. However, many record companies or providers falsely claim the records are only available in one form or the other or try to charge more for other formats. 

Privacy and Medical Malpractice Records

It is important to note that in a medical malpractice case, you may lose some of your privacy rights in your medical records. Generally, your medical history is private and healthcare providers are restricted in sharing any information about your medical history. However, because medical care and health are at issue in a medical malpractice case, you may lose some of your privacy rights in your healthcare. Talk to your medical malpractice attorney about any privacy concerns you have. 

What Happens If There is Missing Proof?

Even after you gather all the evidence, it may appear that the proof of the medical error is missing. You do not necessarily need to have a smoking gun, where a doctor makes a clear mistake and documents their mistake on the medical records. The standard of care is something that only a doctor may be able to find a deviation. This is why medical experts are so important in a medical malpractice claim. 

In a medical malpractice lawsuit, your attorney will refer your case to a medical expert with experience, training, knowledge, and expertise in just the type of care involved in your case. Even if you don’t see any proof of negligence, the medical expert may be able to identify deviations from the standards of practice based on their years of experience. An expert can also testify to the jury to indicate their findings of a breach of care and how the deviation caused the patient’s injury. 

It is also important to understand that there may be more information than you are aware of. Some evidence may be missing or even altered. In some cases, a doctor may have tried to cover up their mistakes after the fact by altering the medical records. This is where your attorney’s experience and expert witnesses can come in to help identify any conflicting or suspicious information. 

Talk to Your Attorney To Get the Proof You Need

Do not worry about gathering all the evidence yourself. You have enough to deal with after a medical injury, including focusing on recovery. Let your attorney gather all the necessary evidence in your case, especially when medical information is held by the hospital, doctors, or defendants involved in your case. The doctor or hospital may not want to turn over information that shows they were negligent. Your attorney can identify all the necessary proof and evidence, request copies of the information, and have the court step in if the defendants are not cooperating. 

Motion to Compel Evidence

Before the case goes to trial, the parties involved exchange records and information as part of “discovery.” If one of the parties does not hand over information, claims the information is protected, or otherwise tries to prevent or delay discovery, your attorney can file a “Motion to Compel Discovery.” This is a pretrial motion where the court can step in and compel the party to hand over the information or face sanctions. 

Based on the motion and response, the judge may grant or deny the motion and force the parties to turn over the requested evidence. In many cases, filing the motion to compel may be enough to get the hospital to cooperate with the discovery demand. 

After You Gather Proof of Your Medical Malpractice

After you gather the proof you have for your medical malpractice case, make sure you contact an experienced malpractice attorney as soon as possible. There is a limited amount of time to file a medical malpractice lawsuit and these cases can be complex. If you file your case even one day too late, it may mean that you cannot recover any damages for your injury. Talk to a medical malpractice lawyer to understand more about your rights and legal options. 

Experienced medical malpractice lawyers, like the trial attorneys at Gilman & Bedigian, have a lot of experience in medical malpractice claims because they focus on just these types of cases. With the right legal team on your side, you will have the resources to help you recover damages after a medical injury. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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